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Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Common Law

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Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Common Law Emory Law Journal Volume 66 Issue 6 2017 Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Common Law Alexander Volokh Emory University School of Law Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj Part of the Law Commons Recommended Citation Alexander Volokh, Judicial Non-Delegation, the Inherent-Powers Corollary, and Federal Common Law, 66 Emory L. J. 1391 (2017). Available at: https://scholarlycommons.law.emory.edu/elj/vol66/iss6/3 This Article is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. VOLOKH GALLEYPROOFS3 6/19/2017 10:58 AM JUDICIAL NON-DELEGATION, THE INHERENT-POWERS COROLLARY, AND FEDERAL COMMON LAW Alexander Volokh* ABSTRACT On paper, the non-delegation doctrine, with its demand that congressional delegations of power be accompanied by an “intelligible principle,” looks like it might impose some constraints on Congress’s delegations of power. In practice, it looks like it doesn’t. But this disconnect isn’t as stark as it appears: a longstanding but often ignored branch of the doctrine provides that the intelligible-principle requirement is significantly relaxed, or even dispensed with entirely, when the delegate has independent authority over the subject matter. I call this the “Inherent-Powers Corollary.” Not only that: even when the delegate lacks independent authority over the subject matter, the intelligible-principle requirement is still relaxed when the subject of the delegation is interlinked with an area where the delegate has independent authority. I call this dubious extension to the Inherent-Powers Corollary the “Interlinking Extension.” The non-delegation doctrine applies to any delegate that Congress may choose, including of course the President—but also including courts. Some recent scholars have pointed this out, and have suggested that this implies the invalidity of several statutes that delegate power to the judiciary. However, they have largely ignored the Corollary and Extension, which also apply to courts. In this Article, I argue that, because courts have many inherent or quasi-inherent powers, the Corollary and Extension save many congressional delegations to courts that one might otherwise think suspect. I also explain how the Corollary and Extension cast light on enduring debates among federal courts scholars over the constitutional foundations of the Erie doctrine and the proper scope of federal common law.* * Assistant Professor, Emory Law School, [email protected]. I am grateful to Jonathan H. Adler, Thomas C. Arthur, Kent H. Barnett, Benjamin Klebanoff, Brian C. Lea, Kay L. Levine, Jonathan R. Nash, Usha Rodrigues, Robert A. Schapiro, Eric J. Segall, Peter L. Strauss, Eric L. Talley, Christian Turner, Eugene Volokh, John Witte, Jr., Paul J. Zwier II, and the organizers of the Emory/University of Georgia summer colloquium for their input and assistance. I am also grateful to Matt Bailey, William E. Eye, and Ryan C. Pulley for their able research assistance, and to the law librarians at Emory Law School. I wish I could have gotten comments from VOLOKH GALLEYPROOFS3 6/19/2017 10:58 AM 1392 EMORY LAW JOURNAL [Vol. 66:1391 INTRODUCTION ........................................................................................... 1393 I. THE INHERENT-POWERS COROLLARY ............................................. 1397 A. A Long and Distinguished History ......................................... 1398 1. The Early Presidential Cases ........................................... 1398 2. Not Just the President: Indian Tribes and Courts ............ 1400 3. Loving and the Current State of the Law ......................... 1402 B. The Limits of the Inherent-Powers Corollary ......................... 1404 C. The Dubious Interlinking Extension ....................................... 1406 II. JUDICIAL NON-DELEGATION AND INHERENT JUDICIAL POWER ...... 1408 A. The Doctrine Really Does Apply to Courts ............................ 1410 B. Judicial Non-Delegation as a Canon? ................................... 1414 C. Federal Common Law and the Foundations of Erie ............... 1420 1. The Non-Statutory Erie Principle ..................................... 1422 2. Statutory Erie .................................................................... 1423 III. RULEMAKING, ADJUDICATION, AND FEDERAL JUDICIAL POWER .... 1425 A. Procedural Rulemaking: An Easy Case? ............................... 1426 1. The Power to Make Rules ................................................. 1426 2. The Power to Repeal Procedural Statutes ........................ 1427 B. Uniquely Federal Interests ..................................................... 1429 1. Enclaves ............................................................................ 1429 2. The Need to Ignore Delegated Judicial Power ................. 1430 3. Jurisdictional Grants ........................................................ 1432 C. Defenses and Similar Statute-Narrowing Doctrines .............. 1434 D. Remedies ................................................................................. 1436 E. Statutory Interpretation .......................................................... 1437 1. Is Ambiguity a Delegation? .............................................. 1438 2. The Problem of Delegated Lawmaking ............................ 1443 3. Some Ambiguous Statutes ................................................. 1446 a. The Armed Career Criminal Act ................................ 1447 b. The Religious Freedom Restoration Act .................... 1449 c. The Alien Tort Statute ................................................ 1451 d. The Sherman Act ........................................................ 1453 CONCLUSION ............................................................................................... 1457 Daniel J. Meltzer (1951–2015), my own Federal Courts professor (Spring 2003) who, both in person and through his co-authorship of the Hart & Wechsler casebook, infra note 21, taught me everything I know about federal common law. I would also have liked to know what Justice Antonin Scalia (1936–2016) thought of my critiques of his writings. I have blogged about this Article in a series of posts. See Sasha Volokh, Wrapping Up Judicial Non-Delegation, WASH. POST: VOLOKH CONSPIRACY (Sept. 3, 2015), https://www.washingtonpost.com/news/ volokh-conspiracy/wp/2015/09/03/wrapping-up-judicial-non-delegation/ (concluding the series of posts and linking to previous posts in the series). VOLOKH GALLEYPROOFS3 6/19/2017 10:58 AM 2017] JUDICIAL NON-DELEGATION 1393 INTRODUCTION We all know the standard theory of the non-delegation doctrine, as it’s taught in Administrative Law courses. The Vesting Clause of Article I, § 1 says that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”1 This has been taken to mean Congress can’t divest itself of its legislative power2 (though this reading isn’t obvious3). In turn, this principle has been implemented by requiring that Congress, in delegating power, always provide an “intelligible principle” to guide the delegation—this would prevent the delegation of power from becoming a forbidden delegation of legislative power4 (though this, too, isn’t an obvious construction5). In other words, Congress must make at least certain hard choices rather than entirely passing responsibility to someone else. We also know the standard practice of the non-delegation doctrine: Despite the standard theory, pretty much every federal statute nonetheless survives non- delegation review. The non-delegation doctrine is notoriously lax—or should we say it’s kind of fictitious? Congress has been allowed to delegate power to agencies using wording like “unduly or unnecessarily complicate[d]” corporate structures and “unfair[] or inequitabl[e] distribut[ions of] voting power,”6 “generally fair and equitable” price controls,7 and the “public interest.”8 The last two times a circuit court has tried to apply the non-delegation doctrine strictly,9 the Supreme Court has taken a dim view of the effort.10 1 U.S. CONST. art. I, § 1. 2 See Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 472 (2001); Field v. Clark, 143 U.S. 649, 692 (1892). 3 See Am. Trucking, 531 U.S. at 487–90 (Stevens, J., concurring) (“I am persuaded that it would be both wiser and more faithful to what we have actually done in delegation cases to admit that agency rulemaking authority is ‘legislative power.’”); see also Alexander Volokh, The New Private-Regulation Skepticism: Due Process, Non-Delegation, and Antitrust Challenges, 37 HARV. J.L. & PUB. POL’Y 931, 956 (2014). 4 See J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 409 (1928). 5 See, e.g., Am. Trucking, 531 U.S. at 486–87 (Thomas, J., concurring) (“I am not convinced that the intelligible principle doctrine serves to prevent all cessions of legislative power.”). 6 Am. Power & Light Co. v. SEC, 329 U.S. 90, 104 (1946). 7 Yakus v. United States, 321 U.S. 414, 420 (1944). 8 Nat’l Broad. Co. v. United States, 319 U.S. 190, 225–26 (1943); N.Y. Cent. Sec. Corp. v. United States, 287 U.S. 12, 24–25 (1932); see also Am. Trucking, 531 U.S. at 474–75. 9 See Ass’n of Am. R.Rs. v. DOT, 721 F.3d 666 (D.C. Cir. 2013); Am. Trucking Ass’ns v. EPA, 195 F.3d 4 (D.C. Cir. 1999) (holding that a section of the Clean
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